As undergraduates in the A.D. Club say they want to remain all-male, a graduate member offers advice on how to mount a legal defense

In the face of mounting pressure from administrators who argue that single-sex social organizations run counter to Harvard’s ideals, 31 of 36 undergraduates in one of the College’s remaining all-male final clubs remain steadfast in their commitment to stay single-sex.

The undergraduate members of that club—the 179-year-old A.D. Club, located on Plympton Street—have received extensive advice from at least one graduate on how they could defend their policies were Harvard to demand that they admit women, according to correspondence obtained by The Crimson.

In an email to club graduate officers sent Friday in what appeared to be an ongoing discussion among members, undergraduate president Coby C. Buck ’16 wrote that 31 of 36 undergraduates members in good standing with the A.D. oppose any changes in the club’s membership policy.

“As we continue to gauge the member sentiment toward [the] current issues at hand, the undergraduate officers and I thought that it would be productive to share the position of the undergraduate membership of the Club,” Buck wrote in the email.

Attached to Buck’s email was a letter bearing the 31 undergraduates’ formal signatures. Of the other five undergraduates, Buck wrote in his email, some also oppose membership changes, but for “personal reasons” did not sign it.

“We the undersigned undergraduate officers and members of the AD Club are strongly opposed to any changes in the Club’s membership policy,” Buck and club undergraduate vice president Abraham D. Polinsky ’16 wrote in the attached letter. “We are confident that if we maintain the fraternal character that has made the AD such a successful and happy place for many generations, the standing and health of the Club will only improve in future years.”

In the face of those pressures, two of Harvard’s eight historically male final clubs—the Spee and the Fox—have gone co-ed, with the Fox specifically citing administrative threats as one factor that influenced its decision. The Delphic Club, for its part, has discussed merging with a female final club.

The A.D., however, does not seem to be budging, and at least one club graduate is offering legal advice to support that position.

On Oct. 31, A.D. graduate member Walter L. Foulke ’61 sent club affiliates a memo, addressed to “Gentlemen,” acknowledging pressures on the group to go co-ed and outlining a plan for how it can defend its right to maintain the status quo, given the stance of its undergraduates.

In a letter dated Oct. 31, A.D. Club graduate member Walter L. Foulke '61 advised other club affiliates on how the group might legally defend its male-only membership policies were Harvard to attempt to coerce it into admitting women. Foulke, a retired attorney, told The Crimson that a footnote, cut off in the letter sent to club affiliates, should read: “In Griswold, Justice Douglas writes, ‘The right of “association,” like the right of belief, is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means… and while [Association] is not expressly included in the First Amendment its existence is necessary in making the express guarantee fully meaningful.’”

Foulke suggested in the letter that Harvard views this issue as one between itself and its students—namely, those in final clubs it would demand disaffiliate from all-male groups. Nonetheless, Foulke argued that a move to coerce the all-male clubs into admitting women would face significant legal challenges.

“Although the College has no legal basis to dictate policies to the Final Clubs, nevertheless, it intends to coerce its undergraduates into an illegal, intrusive, and unenforceable ‘contract’ governing their off-campus private lives in order to force the clubs to admit women to their memberships,” Foulke wrote. “I think we should commit to assist our undergraduates in the defense of their rights as vigorously as we can.”

Foulke, who graduated from Harvard Law School in 1965 and previously worked in the Pennsylvania attorney general’s office, argued that a mandate for clubs to go co-ed would not only prompt unjustified administrative reach into final clubs’ operations, but would be illegal.

Citing a wide array of Massachusetts and Supreme Court jurisprudence, Foulke raised several legal objections to any requirement or contract Harvard would make with students mandating that they not join a final club. Foulke framed such a policy as an attack on the freedom of association as protected by federal law. He also pointed to “duress,” suggesting that a pledge against joining final clubs drawn from undergraduates would be against the law if the promise were obtained in a threatening way.

Foulke pointed to what he wrote were state protections for the clubs, arguing that precedent has allowed a private club that is not a “public accommodation” to select its membership on the basis of “sex, race, disability, sexual orientation, etc.”

To argue that the A.D. would not qualify as a public accommodation, Foulke contrasted Harvard’s male final clubs with eating clubs at Princeton, undergraduate social organizations that were forced to admit women as a result of a gender discrimination lawsuit in 1990. Unlike Princeton’s eating clubs, Foulke argued, the College’s male final clubs neither receive money from the institution nor are advertised as part of the University’s meal plans.

Foulke also argued that the College cannot apply similar arguments used by Williams and Amherst administrators, who effectively banned their students from joining fraternities, and in the case of Amherst, sororities and similar organizations as well.

Foulke maintained that Harvard cannot rely on that precedent because the final clubs play a smaller role on campus, suggesting that members of the remaining male clubs represent a “vanishingly small portion of the hugely rich and varied social scene available to Harvard undergraduates.”

“Unlike the Amherst/Williams cases, in Harvard’s case there is no discernible university benefit to be achieved via Harvard’s risky proposed mechanism. Any benefits to be achieved are far too trivial in relation to the freedoms that would be abridged,” he wrote.

Foulke also argued in his letter that “Harvard has failed to demonstrate any actual harm done by the Clubs” and that the University’s sanctions on them would have to be “narrowly targeted towards those clubs that Harvard had succeeded in demonstrating were at fault for failing to maintain discipline.” To Foulke, the A.D. Club is “clearly not in a position of any fault.”

He also argued that administrators appear to be selectively targeting male final clubs and that barring membership from the groups would set a dangerous precedent.

“The clear bias makes no sense and exposes the whimsical behavior of the University all the more dramatically,” he wrote. “The selective targeting of male Final Clubs is entirely capricious and would open the door to the targeting of other licit behavior on the basis of ideological fads.”

“What if, tomorrow, Harvard decided that being a member of the National Rifle Association, the Catholic Church, or the Communist Party was a breach of the ‘contract?’” he added.

Foulke also cautioned against further influence administrators could exert over the clubs if they went co-ed, positing that their involvement would increase liability as well as the likelihood that sexual harassment allegations would surface. “Once women are inside a club full-time, and the inevitable sexual assault harassment allegations start to occur, Harvard’s ability to interfere with that institution’s operations will expand dramatically,” he wrote. “[T]here will be no end to the amount of control Harvard will attempt to assert.”

Various Harvard affiliates have previously raised concerns about the potential for sexual assault to occur on off-campus final club properties, but generally students have suggested that adding women to the memberships of the all-male groups would help combat the problem, not worsen it.

This fall, in the wake of what Faust called the “deeply disturbing” results of a University-wide sexual assault climate survey conducted last spring, final clubs have faced increased scrutiny. Though the survey—which was tailored for use at 27 universities—did not mention final clubs by name, people have pointed to the 15 percent figure of sexual assault incidents reported at “single-sex organizations that are not fraternities or sororities” as a marker of incidents at final clubs. Economics professor David I. Laibson ’88, a member of Harvard’s sexual assault task force who worked on designing the survey, said the category was meant to encompass final clubs.

‘LEGAL AND PUBLICITY HAZARDS’

Foulke concluded in his letter that Harvard would face both legal and logistical challenges were it to try to force the A.D. to admit women against its wishes. Foulke expressed doubt throughout the letter that University administrators would actually enact co-ed mandates. He deemed the A.D.’s legal position “unassailable.”

“Harvard will ultimately understand the significant legal and publicity hazards its proposed approach involves,” he wrote.

Even if administrators were to enact policies mandating that final clubs admit women, Foulke wrote that the policies would make “enforcement impossible without unacceptable intrusiveness,” citing the challenge of identifying which students actually belonged to the groups. He suggested administrators would need to resort to “hearsay, innuendo and indefensible guesswork.”

“Keeping track of who enters which private property, who pays dues to which licit, private organization, and so on is a legal and public relations minefield that the University cannot profitably enter,” he wrote, deeming such a search a “witch hunt.”

A.D. graduate board president Kenneth G. Bartels ’73 declined to comment for this story, and Buck did not respond to a request for comment, nor did Khurana.

In an interview, Foulke said he has received mostly positive feedback on the letter, which he said was circulated widely among final club affiliates.

“I just feel that the dean’s office appears to be overreaching…. I don’t think they have a right to do that,” Foulke said.

“There’s nothing wrong if they want to take a female member, ” he said of final clubs. “But they don’t have to, at least in my view, because of the right of free association.”

If the clubs contacted him for further help, Foulke said, he would likely offer them financial assistance. He said he will withhold donations to Harvard if administrators mandate that the remaining male final clubs go co-ed against their wishes.

“Why give money to an organization that’s trying to strangle one of the ones you like?” he said.

Legal experts have previously suggested that Harvard could effectively argue that it has the right to make the clubs defunct. But one of those experts, Harvey A. Silverglate, a Cambridge civil rights attorney and a longtime critic of the College’s Administrative Board, suggested that Foulke’s memo makes some valid points.

Silverglate said he thinks Foulke drew a fair distinction between the role of the final clubs and social groups on other campuses. Because final clubs are not analogous to public restaurants and do not disadvantage civilian non-members, Silverglate said he thinks Massachusetts public accommodations law would not apply to them.

Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law, said private institutions can impose contractual regulations on constituents, but it is unclear how far exactly these could go before interfering with state private association rights.

“I suspect that if this gets to become a legal conflict, it would force Massachusetts courts to articulate in some detail the unique features of Massachusetts law in regards to private association,” Lake said. “It's definitely not well chartered waters.”

—Staff writer Noah J. Delwiche can be reached at noah.delwiche@thecrimson.com. Follow him on Twitter @ndelwiche.

—Staff writer Theodore R. Delwiche can be reached at theodore.delwiche@thecrimson.com. Follow him on Twitter @trdelwic.